The Volokh Conspiracy
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The Court's Religious Discrimination Reasoning in the Masterpiece Cakeshop Case
Why did the Court find that Colorado acted based on hostility to religion -- and thus violated the Free Exercise Clause -- and not just based on hostility to sexual orientation discrimination?
The main question raised in Masterpiece Cakeshop had to do with the Free Speech Clause, and the prohibition on "compelled speech": Would requiring a baker to make a wedding cake for a same-sex wedding (even one without specific wording or symbolism, such as a rainbow design) be compelling the baker to engage in speech, and thus violate the First Amendment? As the Court put it, "Phillips … argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation," and "this contention has a significant First Amendment speech component."
But ultimately the Court focused on a different matter: In resolving this question under Colorado law (which past Colorado decisions had said "afforded storekeepers some latitude to decline to create specific messages the storekeeper considered offensive"), Colorado executive and judicial bodies—the Colorado Civil Rights Division, the Colorado Civil Rights Commission, and the Colorado Court of Appeals—appeared to be discriminating against Masterpiece Cakeshop because of its owner's religiosity. And this, the Court held, violated the Free Exercise Clause: While that Clause generally doesn't mandate exemptions from neutrally applied generally applicable laws, this law wasn't neutrally applied.
Why is that? The Court basically points to three elements.
First, the Court concludes,
The Civil Rights Commission's treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.
That hostility surfaced at the Commission's formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips' case. At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado's business community. One commissioner suggested that Phillips can believe "what he wants to believe," but cannot act on his religious beliefs "if he decides to do business in the state." A few moments later, the commissioner restated the same position: "[I]f a businessman wants to do business in the state and he's got an issue with the—the law's impacting his personal belief system, he needs to look at being able to compromise."
Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor's personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips' free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely.
I think that it's hard to make much of these statements by themselves; they simply reflect the Court's holding in Employment Division v. Smith that "an individual's religious beliefs" do not "excuse him from compliance with an otherwise valid law." Indeed, under Smith, a person can believe "what he wants to believe," but cannot act on his religious beliefs—if those actions violate an otherwise valid law—"if he decides to do business," or even just decides to be present, "in the state."
But, second, the court pointed to a statement by one commissioner at a later Commission meeting:
On this occasion another commissioner made specific reference to the previous meeting's discussion but said far more to disparage Phillips' beliefs. The commissioner stated:
"I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others."
To describe a man's faith as "one of the most despicable pieces of rhetoric that people can use" is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips' invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado's antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.
The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission's decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements [by an adjudicatory body deciding a particular case] cast doubt on the fairness and impartiality of the Commission's adjudication of Phillips' case.
Here, the statement does seem more like hostility to a particular kind of religious belief, and not just hostility to a secularly defined practice (discrimination). The two are often hard to tease apart, but seven Justices were persuaded that this impermissible hostility to religion was present here.
And then the Court pointed to the third fact:
Another indication of hostility is the difference in treatment between Phillips' case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission…. [O]n at least three other occasions [all brought by one William Jack,] the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included "wording and images [the baker] deemed derogatory," featured "language and images [the baker] deemed hateful," or displayed a message the baker "deemed as discriminatory, Jack v. Azucar Bakery.
The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission's treatment of Phillips' objection.
The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.
Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips' willingness to sell "birthday cakes, shower cakes, [and] cookies and brownies" to gay and lesbian customers as irrelevant.
The treatment of the other cases and Phillips' case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission's consideration of Phillips' religious objection did not accord with its treatment of these other objections.
Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers' conscience-based objections as legitimate, but treated his as illegitimate—thus sitting in judgment of his religious beliefs themselves.
The Court of Appeals addressed the disparity only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that "[t]his case is distinguishable from the Colorado Civil Rights Division's recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed" when they refused to create the requested cakes. In those cases, the court continued, there was no impermissible discrimination because "the Division found that the bakeries … refuse[d] the patron's request … because of the offensive nature of the requested message."
A principled rationale for the difference in treatment of these two instances cannot be based on the government's own assessment of offensiveness. Just as "no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion," it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. The Colorado court's attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips' religious beliefs. The court's footnote does not, therefore, answer the baker's concern that the State's practice was to disfavor the religious basis of his objection.
Note that this too is complicated. As Justice Kagan, joined by Justice Breyer, noted,
What makes the state agencies' consideration yet more disquieting is that a proper basis for distinguishing the cases [i.e., a basis that didn't turn on whether the messages were "offensive"] was available—in fact, was obvious.
The Colorado Anti–Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny "the full and equal enjoyment" of goods and services to individuals based on certain characteristics, including sexual orientation and creed. The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay people and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else—just as CADA requires.
By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA's demand that customers receive "the full and equal enjoyment" of public accommodations irrespective of their sexual orientation. The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious belief.
So Justice Kagan thinks (and I agree) that there wouldn't be any evidence of religious discrimination if Colorado government officials had simply said, "The bakers in the William Jack cases were opposed solely to his anti-gay message, not to his religion; there is no reason to think they would have accepted a secular anti-gay cake while rejecting the religious one. Colorado statutes don't ban discrimination based on a person's general views on various subjects, but only discrimination based on religion, sexual orientation, and a few other factors. Those bakers actions thus didn't violate Colorado statutes, but Masterpiece Cakeshop's refusal to bake a cake simply because it would have been used in a same-sex ceremony, does violate Colorado statutes." But instead, the Court's majority concluded, those Colorado officials ended up drawing distinctions that seem to unconstitutionally turn on whether the officials view the messages as "offensive," and possibly on whether the baker's objections are religious.
Justice Ginsburg, joined by Justice Sotomayor, didn't think there was such discrimination, and therefore dissented:
[The William Jack cases and this one] are hardly comparable. The bakers would have refused to make a cake with Jack's requested message for any customer, regardless of his or her religion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries' refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips' refusal to serve Craig and Mullins: Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied. Colorado, the Court does not gainsay, prohibits precisely the discrimination Craig and Mullins encountered. Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated—no better, no worse.
The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins' case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple. In contrast, the other bakeries' sale of other goods to Christian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer.
Nor was the Colorado Court of Appeals' "difference in treatment of these two instances … based on the government's own assessment of offensiveness." Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display.
As the Court recognizes, a refusal "to design a special cake with words or images … might be different from a refusal to sell any cake at all." The Colorado Court of Appeals did not distinguish Phillips and the other three bakeries based simply on its or the Division's finding that messages in the cakes Jack requested were offensive while any message in a cake for Craig and Mullins was not. The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination. See [decision below] ("The Division found that the bakeries did not refuse [Jack's] request because of his creed, but rather because of the offensive nature of the requested message…. [T]here was no evidence that the bakeries based their decisions on [Jack's] religion … [whereas Phillips] discriminat[ed] on the basis of sexual orientation."). I do not read the Court to suggest that the Colorado Legislature's decision to include certain protected characteristics in CADA is an impermissible government prescription of what is and is not offensive….
Statements made at the Commission's public hearings on Phillips' case provide no firmer support for the Court's holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips' refusal to sell a wedding cake to Craig and Mullins.
The proceedings involved several layers of independent decisionmaking, of which the Commission was but one. First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties' cross-motions for summary judgment. Third, the Commission heard Phillips' appeal. Fourth, after the Commission's ruling, the Colorado Court of Appeals considered the case de novo.
What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips' case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council.
Finally, here is the argument from a brief written by Doug Laycock that the Court apparently viewed as quite influential; it might capture the majority's argument about the William Jack cases and this case better than the majority did:
The court of appeals rationalized this unequal treatment in a footnote. It said that petitioner's objection to the message he said his cake would send—his confessed "opposition to same-sex marriage"—discriminated against the same-sex couple that wanted him to send that message. The protected bakers also objected to "the offensive nature of the requested message," but the court said that refusing to make a cake with that message did not discriminate against the very conservative Christian requesting that message. The court of appeals reached this conclusion even though Colorado prohibits discrimination on the basis of "all aspects of religious beliefs, observances or practices … as well as the beliefs or teachings of a particular religion, church, denomination or sect.".
The protected bakers' willingness to produce cakes with other "Christian themes" for other Christian customers was treated as exonerating. Petitioner's willingness to produce other cakes and baked goods for respondents and other same-sex couples was treated as irrelevant.
For the protected bakers, the court assumed that the message would be the bakers' message and not the customer's; the bakers could lawfully object to "the offensive nature of the requested message." For petitioner, the court said that his cake would send no message, but if it did send one, it would be the customer's message, not the baker's..
For petitioner, the fact that he would merely be complying with the law meant that he would send no message. For the other bakers, this argument went unmentioned.
The court also said that in the cases it distinguished, the customer wanted objectionable words on the cake, and that in petitioner's discussion with the individual respondents he did not learn what they wanted on their cake. But petitioner could surely assume that they wanted some words or symbols on the cake, and an essential part of his task was to help them choose those words and symbols. In any event, the very purpose of a wedding cake is to celebrate the wedding and the marriage, with or without an inscription.
And under the court's reasoning, the case would have come out the same way even if the conversation had lasted longer and the couple had said they wanted two men in tuxedos, "David ? Charlie," a rainbow, or any other more explicit message. The court's logic would still have said that it would be the customer's message, not petitioner's; that petitioner would merely be doing what the law required; and that refusing to produce this message discriminated on the basis of sexual orientation.
Even if the court's alleged distinctions were more persuasive, and even if they succeeded in placing the two sets of bakers in different doctrinal categories under state law, that would not change the bottom line. The conscience of bakers who support same-sex marriage, or refuse to oppose same-sex marriage, is protected. The conscience of bakers who object to same-sex marriage is not protected.
This discrimination is like the ordinance in R.A.V. v. City of St. Paul (1992), where racial epithets were illegal, but "racist," "bigot," and a vast range of other offensive epithets were permitted. State law placed the two sets of epithets in different doctrinal categories, and the correlation between epithets hurled and speakers regulated was imperfect. But these distinctions could not save a regime that effectively "license[d] one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." It is no more defensible here to allow one side to follow the dictates of conscience while requiring the other side to submit its conscience to the demands of any customer who walks in the door.
